Today [Wednesday, October 30, 2013], The Games Began in Monroe Michigan as the Nuclear Regulatory Commission Atomic Safety and Licensing Board (NRC ASLB) started hearings on Detroit Edison’s "Fermi 3 Licensing Project". Outgunned? Fairewinds’ Arnie Gundersen and the seven expert witnesses retained by the NRC staff and Detroit Edison agree that there was no Quality Assurance (QA) program in place for two years as required by federal law, but the seven industry experts say build it anyway! Damn the safety regulations; full speed ahead to the pork-barrel federal loan guarantees to build a one of a kind Economic Simplified Boiling Water Reactor. Listen as Maggie, Arnie, and host Nathaniel White-Joyal discuss the stacked deck on this week’s Fairewinds Energy Education Podcast.

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NWJ: Welcome to the Fairewinds Energy Education Podcast. Most of our listeners know that Fairewinds Energy Education provides topnotch, cutting-edge media to educate the public about what’s happening in the world of nuclear energy. But what many of our listeners may not know is that there’s another company, Fairewinds Associates, which provides paralegal services and expert witness testimony. Arnie’s going to be going out to Monroe, Michigan, to talk about the case surrounding Fermi 3 reactor. So Arnie, let’s fill in our listeners about what’s happening outside of Detroit in Monroe, Michigan, at Fermi 3.

AG: Okay. Well, the name Fermi and nuclear go together, because there was a famous book We Almost Lost Detroit, and Fermi 1 was a reactor that had a meltdown in the 60’s. On that same site is Fermi 2, which is the largest Mark 1 boiling water reactor in the world. And Mark 1 is identical to Fukushima Daiichi. What is now being proposed by Detroit Edison is to put Fermi 3 there, which would be the biggest reactor in the world; also a boiling water reactor of a new design called an Economic Simplified Boiling Water Reactor. Notice they don’t talk about it being safer. They just say it’s economic. And there’s a hearing this week. The hearing this week is with the Atomic Safety & Licensing Board. They’re going to be deciding whether or not the license application to build the Fermi 3 reactor is ready to go.

NWJ: Arnie, you’re on record as saying that the BWR Mark 1 reactor is the most susceptible to a meltdown, and in fact, before Fukushima Daiichi, you had said that the next meltdown is going to be at a Mark 1 BWR reactor.

AG: Yeah, this one is the biggest Mark 1 containment in the world. And what the NRC has done is they have allowed all these Mark 1’s to gradually make changes to come in line with Fukushima modifications. But they’re giving Detroit Edison until 2019 to make those modifications. It’s not the subject of the hearing, but it is an example of how the NRC stacks the deck to allow nuclear plants to run when they’re not as safe as they should be.

NWJ: Well, that’s upsetting. And isn’t the NRC’s mandate to protect the public?

AG: The NRC is responsible, first and foremost, for public protection. That’s not the way it works out in reality, though. The industry – nuclear industry – has captured the NRC and uses its own laws against it. So the industry helps the NRC write the laws and basically they’ve lassoed the NRC so that it’s unable to protect the public’s health and welfare and in fact, does just the opposite. It really is designed now to protect the nuclear industry from the public. The groups that I’m being hired by are actually the public and I’m representing them against the Nuclear Regulatory Commission and against Detroit Edison.

NWJ: Okay. So before we get into the nuts and bolts of the case, let’s jump to Maggie and get you to talk a little bit about how the NRC really does stack the deck against the interveners. (3:31)

MG: Thank you, Nathaniel. The NRC stacks the deck by requiring the interveners to present evidence at a depth that is unbelievable. They will have their experts and the other side – the utilities or industry has experts who have never testified on both sides. Arnie is one of the experts who has testified both for and against nuclear power plants on the oversight panel in Vermont a few years ago. He was one of a team of five who agreed that if Entergy met the criteria, they could relicense the plant for another 20 years. I have never seen in the utility case, and I’ve done a lot of them as a paralegal and as the president of Fairewinds Associates – I have never seen the industry experts testify that there is an issue with any nuclear plant. They are beholden to the industry and they are paid exorbitantly high rates to testify for the industry. For that matter, when I did research on one of the cases in which we were involved, all of the experts from the defendant, from the industry had had their testimony reviewed by NEI. NEI is Nuclear Energy Institute and it’s the lobbying arm of the industry. So it’s very, very challenging. The interveners have usually one attorney and several intervener groups are funding it. They are buried in motions by industry attorneys and from what we’ve seen and what I personally know from papers that have been given to us, there is a cadre of industry attorneys who work to malign and try and bury every intervener expert that’s brought forward. Let the games begin is the way I think it’s played. And they began this week on Friday when a whole lot of documents were filed suddenly by the NRC Atomic Safety & Licensing Board. Some of these documents are not even available to be viewed until Monday, two days before we’re in hearings, which puts the expert on this case and the intervener groups on this case in really short notice. They don’t have a stable of 10 or 15 or 20 attorneys. One of the federal cases on which we worked, there were 5 attorneys on our side and there were 25 attorneys every day in court against us. They were papering everything with motions and it’s outrageous the amount of money spent. In our case, back in the 90’s as nuclear whistle blowers, they had sued us for 1.5 million dollars, spent $50,000 a week against us in pretrial hearings and they had a whole suite at the Hilton Hotel near the courthouse, a whole floor in which they had 13 attorneys, a whole staff of assistants, copiers, everything else they had put in there. And we had our attorney, our son, helping out, the attorney’s paralegal and Arnie on the case. And I was working two jobs to keep our heads above water. This is the stacked deck that the public faces every week. They face it in these hearings. They are disenfranchised. And like you said, Nathaniel, the mandate for the NRC is protect public health and safety. That is the quote in the regulations.

NWJ: And yet they consistently give the utility preferential treatment. In this instance, Detroit Edison. It’s something that we see over and over again.

AG: Yeah, let me give you three examples. This week at Detroit Edison, I’m testifying about quality assurance program problems and the NRC is testifying against me. They have 3 experts. (7:47) And Detroit Edison is testifying against me. They have 4 experts. So it’s 7 to 1 against me with the Nuclear Regulatory Commission lining up with the utility. But there’s 2 others. I was out at the Pilgrim reactor in Boston and it was me and a brilliant pro se woman named Mary Lambert against 20 experts and attorneys. We were outgunned. I think they probably were spending something on the order of $8,000 an hour to have the group of experts they had in the room. The worst one, though, is actually a case out in Nevada on YuccaMountain. The state of Nevada hired experts. They came up with 195 things wrong with the YuccaMountain waste dump. The Department of Energy was the agency responsible for defending the application. YuccaMountain was theirs. And they found things wrong with all 195 contentions. Well, that’s to be expected. The state didn’t want it; the Department of Energy did. So 195 wants and 195 rejections. But what the next step was, was really interesting. The Nuclear Regulatory Commission sided with the Department of Energy 195 times to nothing. And these are the people that are supposed to have the public health and welfare in mind. Now to their credit out there, the Atomic Safety & Licensing Board judge said this can’t be. You are not being fair to the public when experts like me and other experts in that case are systematically being rejected. But that’s what the NRC does. They systematically reject expert opinion and line up with the nuclear industry.

MG: Why do you think they do that?

AG: Well, they’ve been captured. They’ve been captured by the utilities. Congress appoints the chairman and commissioners. The people down below get the message. The industry works with the Nuclear Regulatory Commission to write regulation, and the regulations constrain what the NRC can even look at.

NWJ: And is that something you’re going to address in your testimony coming up at Fermi 3?

AG: Fermi 3 is a great example of the NRC doing a flip flop here. In 2007 and 2008, Fermi 3 was in a rush to get its license in because it was lined up for federal loan guarantees. And in their rush, they decided they didn’t any quality assurance. Quality assurance is important. It’s like having an AKC dog. You’ve got papers to prove the dog is a thoroughbred. And it’s almost as if you left your AKC dog out in the dog park for a half a day. Well, are the puppies AKC or not? You don’t know because you’ve lost control of the paperwork. What happened to Fermi 3 is that these guys didn’t have a quality assurance program for 2 years and they submitted their license amendment to the NRC. The NRC realized that and they said, my God, you guys don’t have a quality assurance program. And their response back was a complete flip flop. They said that we don’t need a quality assurance program because until we applied, we were not the applicant. And an applicant shall have a quality assurance program. And the biggest flip flop of all is what happened after that. The NRC, which had just filed a violation against Detroit Edison, flip flopped and said oh, you’re right, you’re not the applicant so therefore, there’s no need for quality assurance on Fermi 3. Well, without quality assurance, you have no idea if the seismic calculations are correct; you have no idea if the borings they did down into the ground are correct. All of that is thrown out the window. So what I’m representing for the citizens of Michigan is that this is wrong. This is not the way a nuclear power plant should be built and that you need quality assurance from the time you put the first shovel in the ground to check the earth, until the plant is finished. The game that they played with the NRC is clearly wrong. And hopefully in the hearings this week, the Atomic Safety & Licensing Board will agree with me and against the 7 experts.

MG: I’m not an attorney. I’m a paralegal. But as a paralegal, I’ve worked with the attorneys on this case. And one of the things that’s really clear is the governing statute says there must be a quality assurance program in place. That is the beginning. That has to do with the design life. That has to do with every step in the process, to make sure that this particular nuclear plant or any nuclear power plant is made to meet the standards of safety. And that hasn’t happened. This plant should not be licensed.

NWJ: I’m a little confused about something. How was Detroit Edison allowed to go ahead with the borings without being the applicant? Don’t they need to be the applicant to go ahead and conduct the borings?

AG: Well, you have every right to be confused because I’m confused, too. I absolutely agree with you that the moment you let the NRC know that you’re going to send in an application, at that point, you’re the applicant. The NRC came out to this site and watched the borings being drilled.

MG: Monies were paid to the NRC to do this review. How they can deny now – oops! They weren’t the applicant, we just took a little road trip.

AG: Well Detroit Edison invited the NRC out to watch them drill these borings under what the NRC believed to be at the time, their own QA program. Then a year and a half later, when they sent their license application in, they represented that they had a quality assurance program. But then the more the NRC looked, the more they realized that they never did have a real quality assurance program, and issued what’s called a Notice of Violation. Well, what happened then was fascinating. Detroit Edison said well, we never a quality assurance program because we weren’t the applicant until the day we applied. And then the NRC rolled over and said you’re right, you didn’t need a QA program. So the situation we’re in is like wanting to eat the cookie but not wanting the calories that go with it. And here’s Detroit Edison wanting to claim they had a quality assurance program, but when they got nailed for not having it, they said they didn’t need it. Then we’ll see what the Atomic Safety & Licensing Board decides about that after two days of hearings and me against 7 experts on the other side.

NWJ: (14:07) And we can quibble over the little individual mandates and laws, but the right thing to do is for Detroit Edison to have a quality assurance program to protect the people of Monroe and of greater Detroit.

AG: This on the site that had the very first meltdown in nuclear history at Fermi 1. The book we had on our website last week, We Almost Lost Detroit, was written about that. So here they are doing it again with no quality assurance on any of the seismic borings that were taken, that are literally the foundation of the plant. One would think if you have a poor foundation, then you’re not going to get a very good plant built on top of it.

NWJ: That makes sense.

MG: Well, for me, it’s games again. Every single site we’ve been to, every case we’ve been involved in, there is some type of game that is conducted by the NRC and the industry. We saw this in California last year with San Onofre. Fairewinds produced 5 reports for Friends of the Earth, and those reports were brought forward that showed that Southern California Edison had lied to the NRC, had covered up because they wanted to make money and get their product through the way they wanted it through and they tried to skirt the regulations. When we first brought those issues forward, Southern California Edison tried to slander us in the media. And their PR rep came on board claiming how we were incompetent, they had 2,000 engineers and we were a small outfit; we couldn’t find any of this, we couldn’t believe in this. And we stayed on task, we stayed on target and stood behind the research we had done. Later, some whistle blowers came forward and validated everything we said. And then another whistle blower came forward and gave specific documents to Senator Boxer’s office and Senator Boxer has called for a Department of Justice investigation into what Southern California Edison did in terms of lying under oath. So what a mess. And what did it do? It cost the rate payers of California 3 billion dollars and counting. And the plant is finally shut down, which is a relief because it was so unsafe.

NWJ: It’s clear that the NRC does not put public safety first. The NRC continues to put these utilities first and doesn’t hold them responsible for their actions.

MG: I want the public to recognize that the NRC capitulates to the industry pressure. And nuclear power is a huge, multi-billion-dollar, trillion dollar industry in the US and worldwide. It is one of the UnitedState’s biggest exports – nuclear power. So is it any surprise to us that money comes before public health and safety? It isn’t to me.

AG: Thank you for mentioning that, that the fundamental underpinnings of the NRC are corrupted by this process. And let’s see if we can change that dynamic in Detroit.

NWJ: Well, hopefully the public will side with you and stand up for themselves. Thank you both for being with me here today. And hopefully during this testimony, the truth will prevail.

AG: Well, I hope so, too. Let’s hope that the Atomic Safety & Licensing Board will for once change its positions and support the public and not the nuclear community.